So, What Actually Is the Rule of Law?
By: Blaine Fix
Over the past year, public discourse increasingly cited the value of the rule of law. In response to the January 6 insurrection, then-President Trump claimed that “Making America Great Again has always been about defending the rule of law.” About a month later, President Biden remarked that one of “America’s most cherished democratic values. . . [is] respecting the rule of law.” What do public figures mean when they refer to the rule of law? Do they invoke the phrase in the same way they purport to know what “the American people” want, or does the idea connote much more than some amorphous optimism in our way of government. Modern legal philosophers such as Joseph Raz and F. A. Hayek have provided normative characterizations of what it means for the rule of law to govern a legal system. Raz, in particular, emphasizes that a society governed by the rule of law “must be capable of guiding the behavior of its subjects,” and identifies certain principles that derive from the rule of law, such as an independent judiciary and accessibility of courts. However, the concept boasts a history stretching back to Greek philosophers, and the ways in which the rule of law has been discussed through history can supplement modern philosophical definitions by bringing to the fore two common themes: fairness and the supremacy of the law.
The exact phrase “rule of law” derives from Samuel Rutherford’s 1644 book, Lex, Rex: the Law and the Prince, A Dispute for the Just Prerogative of King, where he coined the phrase to emphasize that the king is a man, just as any other subject, and should be subject to the “rule of law.” However, centuries earlier, Greek philosophers pondered how the law would best apply to citizens, and their ideas root contemporary principles of the rule of law today. In Plato’s Republic, he argued that “the law should be rational,” and “is to have authority over all citizens and…is fundamentally concerned about the welfare of the whole community and not any particular group or individual.” Aristotle espoused comparable ideals on the role of law in Politics, observing that “where the laws are not supreme, there demagogues spring up,” so, therefore, “[t]he law ought to be supreme over all.” While not explicitly phrasing their notions as the “rule of law,” these early Greek philosophers laid the foundation for the value of the rule of law by pointing out the importance of having a supreme body of laws that applies fairly and equally to all.
In the modern era of Anglo-American politics, debates on the proper role of the law came to a head during the English Civil War. While the concept extends back to the Magna Carta of 1215, Rutherford coined the phrase “rule of law” in 1644 to demonstrate how the king is a man like all other men, not some demi-god. Specifically, he stated that “[t]he Prince remaineth, even being a Prince, a social creature, a Man, as well as a King; one who must buy, sell, promise, contract, [and] dispose: Ergo, he is not [the regulator of rules], but under rule of law.” Further, Rutherford did not coin this phrase in a vacuum, and in that same year a Parliamentary army fighting to subject King Charles I to the English Constitution achieved their first major military victory at Marston Moor. As Plato and Aristotle argued for the supremacy of a body of law over all, Rutherford and Parliamentarians pushed for King Charles I to be subject to the “rule of law.”
A little over a century after England’s domestic struggle over the King’s relationship with the law, the American colonies waged war in part to contest the King’s treatment of the colonies. The American revolutionaries’ grievances about the King parallel Rutherford’s contention that the King adhere to, not put himself above, the law. For example, the Declaration of Independence framed the reasoning for American independence in terms of King George III undermining the rule of law to oppress the colonies. It accused him of, among other transgressions, depriving the colonies of their right to trial by jury, transporting them “beyond Seas to be tried for pretended offen[s]es,” and for making “Judges dependent on his Will alone.” When the colonies established their own systems of government, they were equally concerned with demonstrating their commitment to the rule of law. The 1780 Constitution of Massachusetts, for example, explicitly states that the government is to be “a government of laws, and not of men.” In the context of the new federal Constitution, Chief Justice Marshal in the foundational 1803 case Marbury v. Madison repeated this principle, stating the federal government is a “government of laws, and not of men.” He further illustrated that the law is to be absolute and adjudicated impartially in his famous statement, “[i]t is emphatically the duty of the Judicial Department to say what the law is.” In summary, the principle of the rule of law spurred the Americans to seek independence and played a foundational role in the systems of government that replaced British rule.
Out of this deep history emerges two predominant principles of how a legal system abiding by the rule of law should look. One is fairness, and the other is the general acceptance of the law and its adjudicative procedures. The former is reflected in Plato’s argument that the law should be “concerned about the welfare of the whole community and not any particular group or individual” and Rutherford’s contention that the law should apply equally to even a King. Related to fairness before the law is a full and fair opportunity to be heard, which the American revolutionaries illustrate in accusing King George III of depriving them “of the benefits of Trial by Jury.” The latter, general acceptance of the law, is reflected in Aristotle’s comment that ‘[t]he law ought to be supreme over all,” and Marshal’s proclamation that it is “the duty of the Judicial Department to say what the law is” (since, as it was the judiciary’s exclusive duty, once a court determined the law, it had to be accepted by all).
To promote the rule of law, American’s legal landscape strives to give individuals a full and fair opportunity to be heard. The Equal Protection Clause of the Fourteenth Amendment explicitly makes all equal before the law, and along with the Fifth Amendment ensures individuals are entitled to due process. U.S. Supreme Court cases illustrate how these Amendments apply to uphold the rule of law. Equality may seem like a simple and straight-forward proposition, but often involves restraints on seemingly sensible laws favored by the majority of the population. In 1972, Wisconsin law required all children to attend public or private school until the age of sixteen. However, Amish communities refused to comply, citing their religious belief that taking adolescent children away from their families would threaten their salvation. The Supreme Court in Wisconsin v. Yoder ruled that an individual’s right to exercise their religion under the First Amendment protected their refusal to comply with Wisconsin’s compulsory attendance rule. Yoder illustrates how the rule of law demands the equal application of protections on individuals’ enumerated rights, even if the state has seemingly good intentions. The rule of law also requires that individuals have an opportunity to defend themselves prior to the state depriving them of property, a right protected by the Fourteenth and Fifth Amendments. In a 1969 case, the Court in Sniadach v. Family Finance Corp. ruled that a state law allowing pre-judgment garnishment of a defendant’s wages without service of a summons and complaint violated procedural due process, as an individual has a right to at least a preliminary hearing before a court deprives them of their wages. Sniadach demonstrates how under the rule of law individuals have the right to defend themselves before being deprived of their property. While less severe than King George III’s alleged deprivation of a “Trial by Jury,” the equal application of the law and procedural fairness ensure that individuals can have some success in predicting whether their actions will result in legal liability, a direct appeal to Plato’s concern that “the law should be rational,” and “is fundamentally concerned about the welfare of the whole community and not any particular group or individual.”
The American political order also embodies Aristotle’s principle that “[t]he law ought to be supreme over all.” Article II, Section 1 of the Constitution stipulates that the President is a citizen of the United States, immediately foreclosing any possibility of the demi-god-type leader that Rutherford resisted. The Constitution also makes clear in Article VI that the Constitution and federal law is the “supreme Law of the Land” and takes precedence over all other law. Article IV, Section 1 also renders state judgments final by requiring other states to respect the judgments of courts from other states. Thus, the American federal system establishes a hierarchy of the supremacy of laws and commands that final judgments be respected.
In addition to establishing a hierarchy of supremacy, the American legal system also vests in one body, the judiciary, the power to determine what the law is. This principle stems from Chief Justice Marshall’s declaration in Marbury v. Madison that “[i]t is emphatically the duty of the Judicial Department to say what the law is.” This proposition—that the judiciary has a monopoly on the interpretation of law—has not only been widely accepted (see Michael Sinclair categorizing Marbury v. Madison as “super-precedent” in Georgetown Law Review), but is necessary to maintain the rule of law. Imagine if this were not the case; that, for example, legislative bodies could create committees with the power to adjudicate disputes over the interpretation of laws. If the judiciary still had jurisdiction over that dispute, then the litigants could obtain two equally valid yet contradicting judgments. If this imaginary legislative adjudicatory committee had exclusive jurisdiction over such disputes, this would give the legislature the power to make the law and interpret it. This would obliterate principles of separation of powers by allowing a majority legislature to determine the scope of their own powers. This in turn would undermine the rule of law by giving one majoritarian body unfettered power to alter and interpret law. Thus, to maintain the rule of law, it is necessary to vest all interpretive decisions with the judiciary.
In order to appreciate what public figures refer to when invoking the phrase, the rule of law, historic contextualization can supplement other philosophical definitions to furnish a comprehensive understanding. Raz perhaps provides the leading definition, stating that the following principles be derived from the basic idea of the rule of law: “all laws should be prospective, open, and clear; laws should be stable; the making of laws should be guided, open, clear, and general rules; the independence of the judiciary must be guaranteed; natural justice must be observed; courts must have reviewing power over some principles; courts should be accessible; and the discretion of crime-preventing agencies should not be allowed to pervert the law.” While helpful in providing concrete concepts to tie to the rule of law, a brief overview of the history of the concept brings to the fore how essential ideas of fairness and supremacy of the law are to a society abiding by the rule of law.
About the Author: Blaine Fix is second-year law student at Cornell Law School who enjoys studying the functions of and the issues surrounding federal courts. This past summer, he worked under the Hon. David Hurd for the Northern District of New York and will be joining Foley & Lardner LLP as a summer associate this May.
Suggested Citation: Blaine Fix, So, What Is the Rule of Law?, Cornell J.L. & Pub. Pol’y: The Issue Spotter (Apr. 26, 2021), http://jlpp.org/blogzine/so-what-actually-is-the-rule-of-law/.